FYI I think the Fish case is simply a bad case in general and should have little to no bearing on self defense case law.

It was recently tossed out based on procedural grounds, not because Mr. Fish was somehow found innocent. I agree with the procedural toss out, but I for one could still see him being convicted of manslaughter. If he would or will be be convicted again remains to be seen, it is enough of a hot topic who knows where it will go. Personally were I on the jury I could see it going either way.

I live in AZ and to my mind Mr. Fish is NO hero. In fact he is an example of the saying "when the only tool in your tool box is a hammer, every problem looks like a nail". Only Fish's hammer was a pistol.

At every level it would seem that Fish chose the most dramatic response, rather than de-escalation. Read the transcripts, guy has a hiking staff in his hand, yet needs to draw and fire a "warning shot" at a dog who is running up to him? And these same dogs did nothing to him after he shot their owner? And then shoots the owner who is (understandably) upset. Fish did't fire at muzzle contact range and sorry but the tuller rule does not apply here has Fish whipped out his shooting iron and fired the first shot, maybe the other guy was going to beat him to death, maybe he would have calmed down when he saw his dog was un-injured but shooting an irrate person who is running at you after you have shot at their dog does not equate to self defense to me, fish largely created the situation and he escalated and escalated the situation to the point of killing someone.

Sorry Fish just appears to be another one of those swinging you know what guys who things a bullet is the right solution to each problem. Want some comic reading, read is pre-sentencing statement; yeah he is sorry, he also details how he "could have covered up the crime, or put a screwdriver in the guys hand" Sure the judge was real impressed with that one.

There's no need to re-try the Fish case here. The procedural errors that got the conviction reversed were reversible error because they prevented Fish from properly presenting important elements of his case and fully dealing with issued raised by the prosecution.

Quote:

Originally Posted by RsqVet

Fish did't fire at muzzle contact range and sorry but the tuller rule does not apply here has Fish whipped out his shooting iron and fired the first shot, ...

"...The man was rapidly descending on Fish, from the high ground. [R.T. 4/26/06 , 60] The man screamed that he would “kill” Fish. [ Id. , 75]. Fish described that man’s eyes as “crazy” and himself as “terrified.” Fish warned the man to stop, but he did not.

Fish held off as long as he could, but the wild-eyed man kept running toward him – despite the fact that Fish had just fired his gun. When the man did not slow down, Fish became convinced he was coming “to hurt” him and it “scared the crap out of” him. [Ex. 305, 32] Kuenzli was “coming like a freight train” and had “this look in his eyes.” Fish was terrified that Kuenzli would “take my gun away and shoot me with it.” [Ex. 305, 33] The legitimacy of this fear was later confirmed by firearm safety instructor Michael Anthony. Fish knew that his only choices were “to take my chances with him and the dogs…or use the gun to defend myself. It was a lousy choice…I can’t win…” [Ex. 305, 38-39]

At the moment of decision, Fish found himself surrounded by Kuenzli and his dogs. Fish feared for his life. Fish waited until the last possible instant before firing and shot Kuenzli just a few feet short of a physical encounter. [ Id. , 76-77, 98-99]. Fish was “scared to death” [Ex. 305, 48] and did not have time to use the sights on his gun, but simply pointed the gun at “center mass” [Ex. 305, 51] as he had been trained. He didn’t “really remember pulling the trigger,” [Ex. 305, 49] but he estimated that Kuenzli was 5-8 feet away.

The state’s firearms expert, Lucien Haag was unable to refute Fish’s account of the shooting, including the fact that Kuenzli was 5-8 feet away. [R.T. 5/02/06 , 202-203]. Haag also testified that the number of bullets in the gun, the bullet found at the scene, the placement of the ejected casings, the angle of the entry wounds were all consistent with Fish’s account. [R.T. 5/02/06 , 219; 222-223; 235]. Haag confirmed that Kuenzli, if running, would have been upon Fish is less than one second. [R.T. 5/02/06 , 223-224]." (emphasis added)

Note also that Fish was older and physically smaller than his assailant.

S&W M&P autos are available with a magazine disconnect as an option. If one chooses not to purchase this feature, could the same "disregard for safety" argument be used in the event of a self-defense shooting? (i.e. you deliberately opted against this available "safety" feature)

What about a DA revolver with a lousy trigger? At what point does smoothing out become a "hair trigger"?

Couldn't any modification at all be questionable?

Is sticking with a completely stock gun, no matter how rough it is, the only answer?

S&W M&P autos are available with a magazine disconnect as an option...

According to the S&W website, it's only an option on LE/Gov't purchases. A private citizen must take the magazine disconnect.

Quote:

Originally Posted by JN01

...What about a DA revolver with a lousy trigger? At what point does smoothing out become a "hair trigger"?

Couldn't any modification at all be questionable?...

Modifications may indeed need to be explained, but some modifications are more readily explained, and will appear more benign, than the disabling of a safety device. Disabling a safety device is an emotionally charged concept.

Changing sights, for example, doesn't have an obvious connection with safety. It wouldn't be too much of a trick to find a qualified armorer who will say that a smooth 10 -12 pound DA trigger is considered safe.

I know an LE trainer and armorer who will not make a 1911 trigger lighter than 4.5 pounds. So if he were called to testify about your 5 pound trigger, he would say that he considers it safe for "duty" use, and would probably accept a trigger down to 4 pounds. But if he were called by the prosecution about your 2.5 pound 1911 trigger, he would testify that he, as an expert, considers it too light for a self defense gun.

Quote:

Originally Posted by JN01

...Is sticking with a completely stock gun, no matter how rough it is, the only answer?...

Not really, but if you're going to modify a gun, you need to be thoughtful and careful. A 4.5 to 5 pound single action trigger is defensible, and it's quite possible to shoot well with a trigger like that; but a 2.5 pound trigger would be a bad idea.

Then again, there are guns that have nice triggers and good sights out of the box.

Sorry Fish just appears to be another one of those swinging you know what guys who things a bullet is the right solution to each problem. Want some comic reading, read is pre-sentencing statement; yeah he is sorry, he also details how he "could have covered up the crime, or put a screwdriver in the guys hand" Sure the judge was real impressed with that one.

The judge, as proven by the reversal, is an idiot in this case, IMO.

Fish had the misguided belief that if he told the truth he would be OK. Sorry Virginia, but that doesn't always work in a timely manner. Fish was telling how he could've changed, or altered the scene, which is never a good idea by the way. He didn't do any of that. He told the truth, and yes, the truth finally won out, but at what cost?

I will say this, from what I know of the Fish case I most likely would've done the same thing. There but for the grace of God go I. I have been Mirandized before, and been in three armed encounters that ended with no shots fired, thankfully. I have also had "political" pressure put upon others to have me fired from a LEO job. Thankfully the Investigators were truthful and not cowed by a self important SOB who is now doing time for corruption if the stories I hear are truthful.

I believe that there are no winners in a gunfight, only survivors. How could one believe that I think the solution to each and every problem is to use my gun? I am not some "swinging you know what" and use avoidance as much as possible. The thing is, sometimes, like in the Fish case, violence is the only answer.

I don't find his Pre Sentence report to be comical at all, but rather sad. It is sad in that he was unable to mount an effective defense and was incarcerated with real criminals unjustly. When I worked in the prison system I would've treated Inmate Fish just like any other inmate, wrongly convicted or not.

I will have to disagree with certain people's assessment of the Fish case.

Duly noted on the Fish case, HOWEVER a self defense argument is based on the total situation, you have recounted only the moment of the shot. By similar logic I could go and provoke a fight, and then draw, fire and claim self defense.

My issue with Fish comes mostly from his actions and choices throughout the incident in sum total --- he had a stick in his hand, yet chose to drop that, and fire a "warning shot". Not exactly a good idea, sounds like the response was one of a person perhaps too quick on the gun, same goes for when they guy ran up to him. How was the other party supposed to act with someone shooting at his dogs? I'll grant you I'm going to kill you is an extream thing to say but Fish uncorked that genie bottle when he chose a warning shot over something else, say stick in one hand, gun in the other... see what happens, bop said animal on the nose, then shoot if warranted?

I agree the whole thing is tragic and that the truth likely lies somewhere in the middle but believe me I was hardly impressed with his statements, and think he really could have made some better choices.

HOWEVER a self defense argument is based on the total situation, you have recounted only the moment of the shot. By similar logic I could go and provoke a fight, and then draw, fire and claim self defense....

It's hard, IMO, to say that Fish provoked a fight. Again from his appeal brief:

"...As Fish was coming out of the canyon, he was suddenly met by Kuenzli’s two unleashed and aggressive dogs. The dogs charged at Fish. Fish felt threatened and cried out, drew his weapon and fired once to scare the dogs off. Neither of the dogs were injured and they scattered momentarily, but Fish was then confronted by a man (Kuenzli) running down the trail, flailing his arms, and yelling: “why did you shoot my dogs?!” The man was rapidly descending on Fish, from the high ground. [R.T. 4/26/06 , 60] The man screamed that he would “kill” Fish. [ Id. , 75]. Fish described that man’s eyes as “crazy” and himself as “terrified.” Fish warned the man to stop, but he did not...."(emphasis added)

Quote:

Originally Posted by RsqVet

...he had a stick in his hand, yet chose to drop that, and fire a "warning shot"....

Yes he had a stick. But he was menaced by two aggressive and apparently uncontrolled dogs. One could easily conclude that a stick was of no use under such circumstances. I think I'd judge a stick to be inadequate against two aggressive dogs.

Quote:

Originally Posted by RsqVet

...I was hardly impressed with his statements, and think he really could have made some better choices...

You're entitled to your opinion, but I think you're wrong.

Fish had but moments to assess the situation. He was confronted first by two aggressive and apparently uncontrolled dogs. He was then confronted by a larger, younger man running downhill toward screaming death threats, apparently ignoring Fish's gun and warnings to stop; and Fish still had the dogs to perhaps contend with. He had to act and act quickly.

As Mr. Justice Oliver Wendell Holmes wrote, "Detached reflection cannot be demanded in the presence of an uplifted knife."

In any case, the court of appeals found sufficient defects in the trial to toss out the conviction.

This has been one of the most informative threads I have read in nearly 10 years on TFL. Thank you, fiddletown and Mas, for your insight and experience-based assessments.

In reading, it appears a number of individuals are attempting to build a legal argument for removing a magazine safety based on performance gains, the lack of impact to a firearm's function while a magazine is in place, and the fact that many other handguns are produced without a magazine disconnect safety (as well as using non-related analogies to reinforce their position). I do not argue with any of these points, but have found Mas and fiddletown's legal analysis fascinating in terms of what may occur in a courtroom situation.

I make the following statement without malice or disresepct, but some individuals are missing Mas and fiddletown's point(s). I do not believe Mas or fiddletown are attempting to make definitive predictions of what will occur in every situation, in every location, in every courtroom. Every scenario will be different, as is any situation in life. Yes, you may be able to remove the mag safety on your handgun, use it in a defensive situation, and suffer no legal ramifications. Or, you could use another firearm and have a prosecuting attorney use your non-factory authorized removal of a safety device as a factor in illustrating a disturbing pattern of behavior. Either situation could occur, and Mas and fiddletown are simply pointing out what may occur iin a courtroom f you choose to remove a magazine disconnect safety.

Removing this safety feature is not illegal, so the choice is yours. You may choose to disable it, you may choose not to. Chances are, it will never become a factor in your life. But the fact that if it did, and what may ensue, are what Mas and fiddletown are presenting.

Do what is best for you, either way.

Edit note: I found this thread after doing a search regarding Hi-Powers, and didn't realize the last post was nearly a month old until after posting my reply. I apologize if I have brought up a dead horse for yet another beating.

All due respect Mr. Ayoob, (And I do sincerely respect your knowledge and experience above most here including me), my problem is that I have seen this issue discussed again and again on forums. I have also seen many lawyers frequent these forums. The point being, let's not give them ideas.

The truth, as I have to my great surprise recently learned, the vast majority of LE are very ignorant about firearms. Very surprising but true. If we don't tell them, they probably won't ever know that the firearm in question has been modified. The prosecutors are even less knowledgeable. And everyday that goes by makes that more true. The Prosecutors are mostly liberal elitist who detest firearms in my experience and know next to nothing about them. I recently received a call from the property Sergent at the local Police Department who had been engaged by her department to recover the filed serial number from my stolen and recovered pistol. She was seeking identification of the "9mm" automatic. Trouble was, as I told her, the pistol that I lost (and it turned out the one that she had) was a "40 S&W". Now if the meter reader had made this mistake it would be one thing .....the department's firearm expert is another. She had been studying this weapon for several days. No, I doubt that she would notice a small opening and decide that it was a modification of the firearm let alone what it was for.

Now since this is an oft discussed issue in these threads, I worry that they will start to catch on. Indeed, I did see above where some one has now heard of a case. 1st one I ever heard.

Let's not shoot ourselves in the foot.

It's always a pleasure to see you here on the forum. I feel honored to be in your company. I have read two of your books cover to cover and found them very informative and enlightening. Gravest Extreme twice, just so I didn't miss anything. I feel every firearms owner should read it. I believe every one no matter how knowledgeable would pick up something....I certainly did. Heck, I bet even you learned something researching it . Thanks for your service to our cause.

...The truth, as I have to my great surprise recently learned, is that the vast majority of LE are very ignorant about firearms. Very surprising but true. If we don't tell them, they probably won't ever know that the firearm in question has been modified. The prosecutors are even less knowledgeable. And everyday that goes by makes that more true....

A few things --

[1] I'm not sure that I really want to put myself in the position of having to depend on the ignorance or ineptitude of a possible adversary. It may be that my adversary will be inept, and I would certainly take advantage of that. But it is a bonus, like a cherry on my sundae. I would not, however, want to count on my adversary being inept. There may be some who indeed are inept, but there are also those who are not. Therefore, I will prepare myself to meet a competent opponent, and if he is not, so much the better for me.

[2] Sure, there are plenty of LEOs who know very little about firearms. Some may not know a BHP from a Glock. Some may never have seen a BHP, let alone know about its standard magazine disconnect and the easy modification to remove it. But not all LEOs are like that. I've shot in competition with LEOs and trained with LEOs who definitely knew guns. Some were bona fide gun nuts. They might not be common, but they're out there. And I wouldn't be surprised if they from time to time share their wisdom with their less gun savvy colleagues.

[3] LE agencies have access to, and use, a whole bunch of experts. Maybe the first officers on the scene don't know anything about BHPs and modifying them to disable the magazine disconnect. And maybe the local deputy DA is also totally ignorant of such matters. But when your BHP now gets taken and booked into evidence, it will almost certainly be looked at by a Firearms and Toolmark Examiner who knows all about BHPs and removing the magazine disconnect, and he will be more than happy to fully educate in that subject the DA and any line personnel who may be interested.

So even if the cop on the beat doesn't know about this, the knowledge is out there and available in the LE community. So not helping our fellow gun enthusiasts understand the legal issues isn't necessarily going to keep the LE community in ignorance.

Pigpen, thank you for your kind words. I am likewise honored to be in your presence, and the presence of all here. Gun people tend to be among the best and most pragmatic and thoughtful of people. That's what brought a lot of them to the gun in the first place.

However, I have to agree with Fiddletown (and, for that matter, with Sun Tzu) that underestimating your possible opponent is not the best way to prepare for a potential conflict.

Even if your shooting occurs in Mayberry, RFD and Barney Fife is the investigating officer, the gun is likely to go to the North Carolina State Crime Lab, where professionals who test guns for a living and probably belong to the national society of firearms and toolmark examiners will test the gun, weigh its trigger, determine if all factory-produced safety devices are working as intended by the manufacturer, etc. Any modification to the firearm can be expected to be discovered.

If the death weapon is Joe Internet's Browning Hi-Power whose manufacturer-provided safety device has been removed by Joe Internet to gain a five-pound trigger pull, we can safely expect that the prosecutor and/or plaintiff's attorney will spend a goodly amount of time from his opening statement to his final summary to the jury yelling about how only an arrogant sociopath would assume he knew more about this pistol than John Browning, Fabrique Nationale, etc., and RECKLESSLY REMOVED THE SAFETY DEVICE FROM A LETHAL WEAPON!

If the death weapon is my Browning Hi-Power, tuned by Bill Laughridge to a sweet five-pound trigger pull with safety devices all intact (AND the magazines dropping free at the touch of a button, thank you very much), none of that can happen.

I will have paid a helluva lot less to Bill Laughridge to fail-safe me and keep this argument from happening, than Joe Internet will have to pay to his attorney(s) and expert witness(es) to fight what may well be a losing battle.

How would one ever get into evidence that the BHP safety was not needed and the subsequent removal by you was not reckless? The Gov has experts to say it was. John Browning is dead & I doubt that FN will assist in your time of need. Also, unless you are an expert witness as to BHP's, your reasons for removing the safety will never see the light of day during a trial.

My thoughts are that the only thing standing between you & prison time is your credabilty as to why you had to use deadly force. Anything that can impair that credability will impact on wether or not your actions were appropriate.

....The one case I've seen was one I was consulted on a number of years ago by Mark Seiden, the prominent Miami defense attorney. His client was charged with manslaughter relating to the accidental discharge of a factory stock Colt Commander. The discharge took place in an office, making the entire office area a crime scene, including the parking lot. The client's car was searched, and police recovered a Browning Hi-Power the defendant kept loaded in the vehicle. He had bought it used, the magazine disconnector safety already removed, and had left it in that condition. The assigned prosecutor made a huge deal over this, claiming that it showed a propensity to do reckless and negligent things with loaded weapons, even though that gun was in no way involved in the death in question...

I would like to know whether there is an actual case where the lawful defensive USE of a Hi Power (with a deactivated magazine disconnect) resulted in the HP owner facing charges.

A negligent discharge resulting in a manslaughter charge (as referenced in the Seiden case) is apples vs oranges to someone defending themself from attack.

Mark's case did indeed involve a negligent discharge, which is why the defendant ultimately took a plea.

However, those of us who've been involved in a lot of wrongful accusations against people who fired in legitimate self-defense over the years, have seen again and again a pattern of both prosecutors and plaintiffs' attorneys trying to paint a justifiable homicide as an indefensible accident.

When that happens -- and it HAS happened, a great many times -- having a gun with a safety device removed by the user (or by a gunsmith upon the user's order, though most gunsmiths won't due that anymore due to THEIR recognition of the obvious liability) gives that prosecutor or plaintiff's counsel a solid hook to convince the jury that your are reckless and have a wanton disregard for life and safety.

When you're sailing on shark-infested seas, it's never a good idea to leave ANY blood in the water. And, believe me, after you've had to kill a human being in this society, no matter how righteous an act of self-defense it may have been, you ARE swimming with the sharks.

A negligent discharge resulting in a manslaughter charge (as referenced in the Seiden case) is apples vs oranges to someone defending themself from attack.

That is not true. It is not unheard of for a prosecutor to attempt to show that the defender fired the shot by accident and is trying to cover up his mistake by claiming self-defense.

Disabled safety mechanisms definitely help a prosecutor who is inclined to take that approach.

Finally, even if Mr. Ayoob can not list a specific case that matches all of the critera that you list, that does not mean it is not an issue, it only means that a specific case that matches all of the criteria that you list has not happened YET or that Mr. Ayoob does not know of such a case. It may speak to the likelihood of such an event occurring or it may simply mean that one or more of the following is true:

No one has used a BHP with a disabled magazine safety in a self-defense shooting to date

No one has used a BHP with a disabled magazine safety in a self-defense shooting to date in the jurisdiction of a prosecutor who had the knowledge to understand the implications and who was inclined to attempt prosecution.

Someone has used a BHP with a disabled magazine safety in a self-defense shooting but the case details are not available to Mr. Ayoob.

Someone has used a BHP with a disabled magazine safety in a self-defense shooting but the circumstances were so overwhelming in favor of the defender that there was no possible way to make an issue of that detail.

etc.

In the absence of a case that exactly fits your criteria, the prudent course of action is NOT to dismiss the concerns but it is rather to solicit and heed the opinions of experts who can speak with authority based on their experience.

Any other course of action is typically evidence of a personal agenda. i.e. If you have no dog in the fight why argue against taking a cautious approach?

Went to my first IDPA match this weekend. After my first course of fire, the SO said, etc, etc,"drop the hammer" I tripped the decock on my SIG P220 an he got a little testy, I realized what he meant was "pull the trigger" .

Now.....all of this was pretty foreign to me, for on a cold range in my usual environment, we would have holstered with the slide locked to the rear and very obviously out of battery, for God and all the world to see that this pistol was CLEAR. The guy w/ pistol in battery and holstered is obviously suspect of having a loaded round in the chamber, but somebody holstered w/ a slide to the rear is SAFE.

I also got off on the wrong foot w/ the safety table. My host said...there's the safety table if you need to handle your gun.... and walked off to help set up. Well, I'm there w/ a duty rig, loaded , ...and were supposed to be clear I gather, so...better unload. I take rig and loaded pistol over to safe table and unload, lock slide to rear. Place breeched, locked open pistol on table, on its sights, butt/magwell up, and begin to stripmags of JHP ammo. Was quickly advise by same SO that such activity was a no-no. Well gosh nobody told me...........

Probably needed a better safety lecture all the way around.

but what goes on your range, ain't necessarily the drill somewhere else.

There's no well-defined IDPA procedures or standards for some of the things you've described. The IDPA manual explains general concepts and talks about range commands, but not how do deal with things around the edge of a match. ("Hammer down" means lower the hammer; a decocker lowers the hammer. Guys who have been around other types of matches understand that to mean "pull the trigger" and they assume, somehow, that everyoe understands that.)

If you've not been through the manual, you can download it from the IDPA website. (I'm a IDPA Safety Officer, and have never seen the kind of table you mention required or defined in the Safety Officer training course or in the manual. Doesn't sound like a bad idea, though.)

I think you've encountered a bunch of guys who have their own strict rules and standards -- nothing wrong with that -- and the standards simply haven't been communicated clearly. It all sounds safe, and "safe" is what it's all about at a match... somethng I understood in theory but I didn't really internalize or practice as intensely as I should have, at first. Never had a problem, either... but I'm becoming more sensitive to this stuff as I get older.

I find this excursion into IDPA procedure interesting. I used to compete in USPSA regularly (and was a range officer, but let my certification lapse because I wasn't competing regularly).

When I started in USPSA competition, I had to go through a 3 hour class at our club. The safety procedures were well explained, and they are well explained in the rule book. They are also uniformly followed, at least in my experience, at all USPSA matches.

[1] The range command "unload and show clear" is followed by "drop the hammer", and that means by pulling the trigger.

[2] Ammunition must never be handled at the safe table. (Ammunition in magazines or speed loaders in appropriate holders on one's belt is okay as long as it is not handled. Otherwise, ammunition must never be at the safe table.)

[3] If one were to arrive on the range with a loaded gun, the proper procedure would be to find a range officer and go through "unload and show clear" using a range not then being used.

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